State v. Messam

• Decision Date: 01 July 2008
• Docket Number: No. 28414.,28414.
• Citation: 949 A.2d 1246,108 Conn.App. 744
• Parties: STATE of Connecticut v. Andre A. MESSAM.
• Court: Connecticut Court of Appeals

949 A.2d 1246

108 Conn.App. 744

STATE of Connecticut v. Andre A. MESSAM.

No. 28414.

Appellate Court of Connecticut.

Argued April 18, 2008.

Decided July 1, 2008.

Mary H. Trainer, special public defender, for the appellant (defendant).

Rocco A. Chiarenza, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Dina Urso, deputy assistant state's attorney, for the appellee (state).

FLYNN, C.J., and LAVINE and PELLEGRINO, Js.

FLYNN, C.J.

The defendant, Andre A. Messam, appeals from the judgment of conviction, following a jury trial, of one count of possession of narcotics in violation of General Statutes § 21a-279(a). On appeal, the defendant claims that (1) the court abused its discretion in denying his motion for disclosure of the identity of a confidential informant, (2) the court abused its discretion in denying his motion for a mistrial after a witness commented on uncharged misconduct and (3) his right to a fair trial was prejudiced when one of the state's witnesses violated the court's sequestration order. We affirm the judgment of the trial court because we conclude (1) that the defendant's arrest on a possession of narcotics charge was not directly related to the confidential informant but, rather, it was based on the defendant's possessing and dropping drugs in front of several police officers immediately prior to the officers' execution of a warrant to search him, (2) that the brief improper comment by one of the witnesses was invited by the defendant and (3) that the defendant failed to preserve for appellate review his claim that witnesses violated the sequestration order.

The jury reasonably could have found the following facts. Members of the Stamford police department had obtained a search warrant allowing them to search the defendant and 26 Orchard Street. On July 16, 2004, prior to executing the search warrant, Officer Steven Murphy observed the defendant leave 26 Orchard Street and walk toward Selleck Street. Murphy notified other officers via his police radio, and the other officers arrived at Selleck Street in their unmarked police vehicle, where they observed the defendant. As the officers, each wearing a "raid jacket" bearing the letters "POLICE," turned into a driveway on Selleck Street, the defendant noticed them and dropped an item from his right hand. The officers exited the vehicle and approached the defendant. Sergeant James Matheny grabbed the defendant by the right arm, Officer Chris Baker grabbed him by the left arm and Officer Kevin Fitzgibbons picked up the item that the defendant had dropped to the ground. The item was a small plastic bag containing crack cocaine.

The defendant was handcuffed and transported to the Stamford police headquarters, where he was charged with possession of narcotics. The defendant's first trial ended in a mistrial; his second trial resulted in a conviction. After pleading guilty to a part B information, in which he was charged with being a second time offender, the court sentenced the defendant to a term of three years imprisonment, with three years special parole. This appeal followed.

I

On appeal, the defendant claims that the court abused its discretion in denying his motion for disclosure of the identity of a confidential informant. He argues that he "was entitled to disclosure of the identity of the informant because the informant had knowledge relevant to this defendant's theory of defense," which was entrapment. We do not agree.

The following additional facts are relevant to our resolution of the defendant's claim. The defendant filed a pretrial motion requesting disclosure of the identity of a confidential informant who had participated in two controlled drug buys from the defendant prior to the police obtaining the search warrant. The court conducted an evidentiary hearing on the motion. At the hearing, Baker testified that the confidential informant had contacted him stating that he could purchase drugs from a black male named "Dre." This confidential informant previously had provided useful information to Baker, leading to numerous drug seizures and arrests. The confidential informant told Baker that he could walk to a house at 26 Orchard Street, whistle, and a man named "Dre" would come out of the house and sell him drugs. Baker and other officers conducted surveillance while the confidential informant made two controlled drug buys from the defendant. After the officers had witnessed these drug purchases, they applied for, and obtained, a search warrant for 26 Orchard Street and for the defendant. At the time the defendant was seized, the officers had not executed the warrant, and the confidential informant was not present. On the basis of this evidence, the court denied the defendant's motion for disclosure.

"As a threshold matter, we set forth the standard by which an appellate court may review the propriety of a trial court's decision [regarding a motion for] disclosure. It is a basic tenet of our jurisprudence that we afford deference to the trial court and assess the trial court's conclusions pursuant to an abuse of discretion standard.... [T]he determination of whether an informer's identity shall be revealed is reviewed as a matter involving the exercise of discretion by the court.... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665, 759 A.2d 79 (2000).

"In Roviaro v. United States [353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)], the United States Supreme Court had occasion to define the nature and scope of the informant's privilege. What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation....

"Roviaro established a test for assessing challenges to the applicability of the informant's privilege. This test involves the balancing of two competing interests: (1) the preservation of the underlying purpose of the privilege; and (2) the fundamental requirements of fairness.... The underlying purpose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant's right to a fair trial, including the right to obtain information relevant and helpful to a defense.... Whether [disclosure is warranted depends] on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors....

"Once the state has invoked the privilege, it is then the defendant's burden to show that the balance of the evidence falls in favor of disclosure.... When the defendant demonstrates that disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense, or is essential to a fair determination of a cause, the government's privilege must yield.... Disclosure is essential to the defense where nondisclosure could hamper the defendant's right to a fair trial, such as where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.... Specific defenses that may merit disclosure include entrapment, mistaken identity and lack of knowledge.... Mere speculation that the informant's information will be helpful to the defense is not sufficient to mandate disclosure." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Bunker, 89 Conn.App. 605, 625-26, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). "Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto.... [C]ourts generally agree that if the informant provides information to law enforcement officers without any further involvement, disclosure must yield to the protection of the informant." (Citations omitted.) State v. Lee, 30 Conn.App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994).

The defendant argues that disclosure was required in this case because it would have assisted with his entrapment defense.¹ He asserts that this case is similar to State v. Hernandez, supra, 254 Conn. at 668-69, 759 A.2d 79, which he characterizes as a case in which "the court found that the [confidential informant] had knowledge relevant to the defendant's theory of defense and ruled that disclosure of his identity was required." The defendant also argues that in Hernandez, "[d]espite the fact that it was not known how the [confidential informant] would testify—i.e., support the defendant's version of events—the court reasoned that the [confidential informant] had information crucial to key disputed issues as framed by the defendant. Therefore, fairness to the defendant's defense required disclosure." The defendant asserts that in the present case, "the [confidential informant] had information relevant to the defendant's defense of entrapment," and, therefore, the court abused its discretion in denying the defendant's motion for disclosure. We do not agree, and we conclude that Hernandez readily is distinguishable from the present case.

In Hernandez, our Supreme Court explained that the testimony of the informant in ...